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Pre-Marital Agreements - November 2009

Wendy Best

Making a pre-marital agreement may not seem very romantic in the run-up to a wedding but, for some, it can amount to sensible financial planning. There is a danger however that if the couple are subsequently involved in divorce proceedings the Court may decide that the agreement is not binding. Such agreements have traditionally been regarded as against public policy because of the risk that one party may put undue pressure on the other person to sign the agreement as a condition of entering into the marriage. In recent years the Courts have upheld pre-marital agreements in certain circumstances but the law at present falls short of providing the level of certainty couples would like when entering into such an agreement.

In the event of subsequent divorce proceedings, the Court must have some regard to the fact that the agreement was entered into and it is more likely to be upheld if the following factors apply:-

· The agreement was not entered into as a result of unfair pressure or unfair influence by one of the parties;
· Each party received separate independent legal advice upon the terms of the proposed agreement;
· Both parties made full and frank disclosure of their financial circumstances;
· The agreement was entered into at least one month before the marriage;
· Enforcement of the agreement would not cause substantial financial hardship to either party or to any child of the family.

The Law Commission has been asked to look at the possibility of introducing legislation to regulate pre-marital agreements. The family lawyers group Resolution is urging the Law Commission to require the Courts to consider that an agreement should be binding on the parties when certain formalities have been observed unless the agreement is seriously unfair.

Wendy Best is a specialist family lawyer and Resolution committee member

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